Alahverdian v. Grebinski et al

Filing 34

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Amended Complaint be dismissed with prejudice. Objections to R&R due by 8/22/2014. Signed by Magistrate Judge Michael R Merz on 8/5/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NICHOLAS ALAHVERDIAN,
Plaintiff,

:

Case No. 3:13-cv-132

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
MARY J. GREBINSKI, et al.,
Defendant.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Plaintiff’s Objections (Doc. No. 32) to the Magistrate
Judge’s Report and Recommendations (the “Report,” Doc. No. 30) recommending the Amended
Complaint be dismissed with prejudice.

Judge Rose has recommitted the case for

reconsideration in light of the Objections. (Recommittal Order, Doc. No. 33.)
Plaintiff’s Amended Complaint purports to state claims for relief for defamation, false
light invasion of privacy, and intentional infliction of emotional distress. The Report provides
thirty-one pages of analysis of these claims under the governing Supreme Court case law, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Noting that Ohio substantive law governs this diversity case under 28 U.S.C. § 1652 and
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), it discusses at length the governing Ohio
case law. In contrast, the Objections contain only three pages of text and no case citations
whatever.

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The Objections are considered seriatim below.

Defamation Per Se

Defendants in this case are Mary J. Grebinski and Nathan M. Lanning. In Count One of
the Amended Complaint, Alahverdian sues both Defendants for defamation per se. The Report
examined each of the allegedly defamatory statements and concluded none of them would
support a cause of action for defamation per se. (Report, Doc. No. 30, PageID 444-56.) Plaintiff
objects as to only two statements, both allegedly made by Defendant Lanning.

Since no

objection is made as to any comments attributed to Defendant Grebinski, Count One should be
dismissed as to her.

Crazy

Lanning is alleged to have posted on his personal blog the words, inter alia, “this guy is a
f__ing crazy f__.” There is no doubt the reference is to Plaintiff. The Report notes that
determining whether a statement is of a matter of fact or opinion is a question of law in Ohio,
and Plaintiff makes no objection to that conclusion. (Report, Doc. No. 30, PageID 445.)
The Objections criticize the Report for not engaging in “any analysis of whether the
Defendants referring to the Plaintiff as crazy are defamatory.” (Objections, Doc. No. 32, PageID
472.) To the contrary, the Report spends a full page analyzing why this statement is an opinion,
including quoting a passage from Plaintiff’s own Response to the Motion to Dismiss in which he
stated that “[p]eople frequently use adjectives such as ‘stupid’ or ‘crazy’ to express their feelings

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or opinion about an individual” and then cited Stepien v. Franklin, 39 Ohio App. 3d 47 (8th Dist.
1988), for the example of a radio talk show host’s calling the president of an NBA team "stupid,
dumb, buffoon, nincompoop, scum, a cancer, an obscenity, gutless liar, unmitigated liar,
pathological liar, egomaniac, nuts, crazy, irrational, suicidal, lunatic,” etc. Id. at 49. The Eighth
District concluded these words were all opinion without the speaker’s having prefaced them with
words like “in my opinion.”
Plaintiff actually argued this was not an opinion but a statement of fact because “the
internet is seen as a provider of factual information for the world. No one would post anything
on the internet that they did not feel was wholly true and accurate.” (Response, Doc. No. 27,
PageID 415.) The Report characterized this statement as “naïve or disingenuous.” (Report, Doc.
No. 30, PageID 452.) In his Objections, Plaintiff asserts “[t]hose people who post anything on a
comments section of a newspaper or other website believe it to be true.” (Objections, Doc. No.
52, PageID 472.) The fact that a poster might believe a statement is true does not determine
whether it is a statement of fact or opinion.
As to whether posters on the internet always believe in the truth of their postings,
Plaintiff is directed to a counterexample. At page B1 of the August 5, 2014, edition of the
Dayton Daily News there appears a report of the successful use of the internet by police posting
false advertisements for services by prostituted women as a “sting” operation resulting in
numerous arrests, including an Air Force lieutenant colonel. Certainly the police officers posting
the ads did not believe that prostituted women were actually available in response to those ads.
See

http://www.daytondailynews.com/news/news/crime-law/wright-patt-officer-csu-professor-

arrested-sex-sti/ngtcf/

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Sexual Assault

Lanning is also charged with defamation for having said Alahverdian committed sexual
assault on Grebinski. The Report concluded this was a true statement because Plaintiff stands
convicted of sexual imposition and public indecency with Grebinski as the victim. The Report
noted that the Ohio Revised Code categorizes both of these offenses as sexual assaults and that
Lanning’s statement was therefore true.
Plaintiff objects that “he did not sexually assault anyone. . . . he is not guilty of any
crime.” (Objections, Doc. No. 32, PageID 473.) Yet in the very next paragraph he admits he was
convicted of public indecency and sexual imposition. Id. He then offers a discussion of the
definition of certain terms in Chapter 2907 of the Revised Code, asserting “[s]exual assault
implies the Plaintiff is guilty of rape.”

Id.

The offense of sexual imposition requires

unconsented sexual contact. “Sexual contact” is defined at Ohio Revised Code § 2907.01(B) as
touching the erogenous zone of another. The courts of Ohio have found that Alahverdian did
sexually assault Grebinski, i.e., that he touched one of her erogenous zones without her consent
with the intent of sexual gratification. It is not defamation to categorize Alahverdian’s conduct
as sexual assault because that is what the Ohio courts and the Ohio Revised Code have done.
However much in denial Alahverdian is about his guilt of any crime, what counts is the
unreversed decision of the Dayton Municipal Court that he is in fact and in law guilty.

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False Light Invasion of Privacy

The Report recites the governing substantive law of Ohio on this claim, which the
Objections do not dispute. (Report, Doc. No. 30, PageID 457-58); (Objections, Doc. No. 32,
PageID 474.)

The Report noted that the comments of Grebinski of which Alahverdian

complained did not reference him at all. (Report, Doc. No. 30, PageID 458-59.) The Objections
make no response to that point.
As to the comments attributed to Lanning, the Report concluded a reasonable listener
would not find Lanning’s opinion that Alahverdian was “crazy” to be highly offensive. Plaintiff
objects to that conclusion, but offers no reason or case authority to the contrary.

Intentional Infliction of Emotional Distress

Count III of the Amended Complaint purports to plead a claim of intentional infliction of
emotional distress against both Defendants, but again cites no behavior of Ms. Grebinski other
than her response to “Colleen’s” webpost which does not refer to Alahverdian. The Report
recommended that Count III be dismissed. (Report, Doc. No. 30, PageID 461-67.)

The

Objections on Count III are completely conclusory, making no argument at all. (Objections, Doc.
No. 32, PageID 474.)

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Conclusion

Based on the foregoing analysis, it is again respectfully recommended that the Amended
Complaint be dismissed with prejudice.

X

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985). Because of the
age of this Motion, no extensions of time to object will be granted.

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